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344 F.

2d 313

UNITED STATES of America ex rel. Tobias BUND, PetitionerAppellant,

J. Edwin LaVALLEE, Warden of Auburn State Prison,
Auburn, New York, Respondent-Appellee.
No. 199.
Docket 29160.

United States Court of Appeals Second Circuit.

Argued November 30, 1964.
Decided April 5, 1965.

Emanuel Bund, New York City (Gerald Sultan, New York City, on the brief),
for petitioner-appellant.

Joel Lewittes, Asst. Atty. Gen., Harold Roland Shapiro, Asst. Dist. Atty., New
York County, New York City (Louis J. Lefkowitz, Atty. Gen., Samuel A.
Hirshowitz, First Asst. Atty. Gen., Iris Steel, Deputy Asst. Atty. Gen., New
York City, on the brief), for respondent-appellee.

Before FRIENDLY and SMITH, Circuit Judges, and BLUMENFELD, District


BLUMENFELD, District Judge.

This is an appeal from the district court's denial of the appellant's petition for a
writ of habeas corpus. Bund was convicted in a New York state court after a
trial by jury on each of three counts of first degree larceny in obtaining three
separate advances of $5000 each from one Elson and his wife by means of false
and fraudulent representations and on a fourth count for forging a stock
certificate in a non-existent enterprise given to the Elsons in return for their
investment. He was sentenced to be confined on each count for a term of not
less than one year and three months nor more than two years and six months,
the sentences to run concurrently. The main claim on this appeal is that Bund
was denied his constitutional rights when the prosecution and the trial court

refused to make the Elsons' testimony before the Grand Jury available to him.

During the cross-examination of Elson, defense counsel alluded to the Grand

Jury hearing, but made no request at that time for the production of the record.1
It was not until after the cross-examination of Elson and his wife had been
completed that the trial judge stated he had examined the Grand Jury testimony
and that there were no substantial variances between the Grand Jury testimony
and that offered upon the trial. The Grand Jury minutes were returned at which
time the trial judge remarked that he would follow the rule in People v. Walsh,
262 N.Y. 140, 186 N.E. 422 (1933), under which the Grand Jury minutes are
not made available to the defense unless the court determines that it contains
some substantial variances from the witness' testimony at trial.

The record includes the Grand Jury minutes and the proceedings at the trial and
on the appeal. The conviction was unanimously affirmed by the Appellate
Division, People v. Bund, 18 App. Div.2d 638, Case #2 (1962). The New York
Court of Appeals unanimously affirmed without opinion, People v. Bund, 13
N.Y.2d 766, 242 N.Y.S.2d 65, 192 N.E. 2d 31 (1963), and amended its
remittitur by adding a clear statement that the appellant's constitutional claims
were denied. Certiorari was denied, 376 U.S. 919, 84 S.Ct. 676, 11 L.Ed.2d 614
(1964). The appellant has exhausted state remedies. United States ex rel.
Weinstein v. Fay, 333 F.2d 815 (2d Cir. 1964).

It is plain that the concept of due process does not require that a witness' Grand
Jury testimony must always be turned over to the defense. In Pittsburgh Plate
Glass Co. v. United States, 360 U.S. 395, 79 S.Ct. 1237, 3 L.Ed.2d 1323
(1959), a federal prosecution where the Supreme Court was free to exercise its
supervisory powers over the administration of criminal justice and thus to go
beyond constitutional requirements, it declined to apply its decision in Jencks v.
United States, 353 U.S. 657, 77 S.Ct. 1007, 1 L.Ed.2d 1103 (1957), relying on
the historic policy of secrecy surrounding Grand Jury proceedings. Although
this Circuit requires its own trial judges to examine the Grand Jury testimony of
witnesses who give evidence at a criminal trial and makes this available to the
defense where inconsistencies exist, e. g., United States v. Zborowski, 271 F.2d
661, 666 (2d Cir. 1959); United States v. McKeever, 271 F.2d 669, 672 (2d Cir.
1959); United States v. Giampa, 290 F.2d 83 (2d Cir. 1961), there has been no
hint that this procedure was thought to be compelled by the due process clause
of the fifth amendment.

The absence of a constitutional requirement that Grand Jury testimony of a

witness must always be made available to the defense does not necessarily
mean that it never need be. It could be argued with some force that when the

Grand Jury testimony is exculpatory and the trial testimony inculpatory, or

even when both are inculpatory but so inconsistent as to cast serious doubt on
the veracity of the witness, failure to make the Grand Jury testimony available
on request is within the principle of decisions holding it to be a denial of due
process for the prosecutor to fail to disclose known exculpatory evidence to the
defense. Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215
(1963); Barbee v. Warden, 331 F.2d 842 (4th Cir. 1964); United States ex rel.
Butler v. Maroney, 319 F.2d 622 (3d Cir. 1963). Whether a state could justify
non-disclosure of Grand Jury testimony of that character against due process
attack on the basis of the historic policy of preserving the secrecy of Grand
Jury testimony is an issue on which the Supreme Court has yet to speak.

We find it unnecessary to decide that issue here. Upon his independent

examination of that record, the District Judge found that at most what was at
stake was whether the witness had told the Grand Jury that a promise to deliver
a certificate of stock was made before he advanced money to the defendant or
afterwards. The time relation between the two events was not an element in any
of the crimes charged in the indictment and was not material for any purpose
independent of the self-contradiction of the witness. The few sematic
discrepancies stressed by the appellant were fragmentary. Their contrasts were
oblique. We are unable to perceive any interpretation from the interconnexion
of the Grand Jury testimony of the Elsons with that they gave at the trial, nor
has any been suggested to us, which furnishes even a pretext for a claim that
exculpatory evidence was suppressed.


A final point remains. 2 The appellant claims that he was denied due process of
law because the New York Court of Appeals refused to apply retroactively its
own decision in People v. Rosario, 9 N.Y.2d 286, 213 N.Y.S.2d 448, 173
N.E.2d 881, cert. denied, 368 U.S. 866, 82 S.Ct. 117, 7 L.Ed.2d 64 (1961), a
case decided after the appellant was convicted but before the Appellate
Division affirmed the judgment. Rosario held that a prior statement of a
witness, including his testimony before a Grand Jury, should be made available
to the defense for possible use on cross-examination. There is nothing in the
Constitution which requires a state to make its decisions retroactive. Warring v.
Colpoys, 122 F.2d 642, cert. denied, 314 U.S. 678, 62 S.Ct. 184, 86 L.Ed. 543
(1941); cf. Griffin v. Illinois, 351 U.S. 12, 25, 76 S.Ct. 585, 100 L.Ed. 891, 55
A.L.R.2d 1055 (1956) (concurring opinion by Mr. Justice Frankfurter).3 The
federal Constitution leaves the courts of New York as free to liberalize the
state's policy on disclosure of Grand Jury minutes only on a prospective basis
as New York's legislature would be.




Sitting by designation

The state court disregarded any issue relating to the untimeliness of the request,
and so do we

We do not find it necessary to consider the alternate ground relied on by the

District Court that because the Grand Jury testimony of the Elsons had no
relationship to the forgery count upon which the appellant received a
concurrent sentence, a writ of habeas corpus could not issue. See United States
ex rel. Smith v. Martin, 242 F.2d 701 (2d Cir. 1957); Ingenito v. State of New
Jersey, 146 F. Supp. 717, and cases cited at 718 (D. N.J.), aff'd, 238 F.2d 935
(3d Cir. 1956), cert. denied, 352 U.S. 1014, 77 S.Ct. 576, 1 L.Ed.2d 560 (1957)

The New York Court of Appeals intended that the change in its policy of
secrecy of Grand Jury minutes was not to be applied retroactively. The postRosario decisions have made it clear that there is no absolute right of reversal
without a showing of actual prejudice. People v. Fiore, 12 N.Y.2d 188, 237
N.Y.S.2d 698, 188 N.E.2d 130 (1962); People v. Fasano, 11 N.Y.2d 436, 230
N.Y.S.2d 689, 184 N.E.2d 289 (1962); People v. Pereira, 11 N.Y.2d 784, 227
N.Y.S.2d 28, 181 N.E.2d 770, cert. denied, 370 U.S. 962, 82 S.Ct. 1619, 8
L.Ed.2d 829 (1962); cf. Shotwell Mfg. Co. v. United States, 371 U.S. 341, 357,
83 S.Ct. 448, 9 L.Ed.2d 357 (1963)